Ruling To Test Texas' Gay Marriage Ban

October 3, 2009|The New York Times

HOUSTON — A family court judge in Texas paved the way for a court battle over the state's ban on same-sex marriage when she ruled this week that two men married in another state can get divorced in Dallas.

The state attorney general said Friday that he would appeal the decision, even as gay rights advocates applauded the judge, Tena Callahan of Family District Court, for declaring that the state's four-year-old ban on same-sex marriages and civil unions violated the right to equal protection under the 14th amendment.

The case highlights a subtle way gay men and lesbians often face discrimination when it comes to marriage: gay couples who married in the few states where it is legal have trouble divorcing and dividing their property if they move to a state where it is not.

The case involves two men who married in Cambridge, Mass., in 2006, then moved to Dallas the following year when one of them was transferred by his company, said a lawyer for the couple, Peter A. Schulte.

The men decided to divorce in January and reached an amicable agreement about splitting up their property. But they had to file for divorce in Texas, because, like most states, Massachusetts allows only residents to sue for divorce, Schulte said.

The Texas attorney general, Greg Abbott, a Republican, took the unusual step of intervening in the divorce proceeding last January. Abbott asserted that the state court could not dissolve the marriage because the Texas Constitution, as amended in 2005, did not recognize any marriage unless it was between a man and a woman.

But Schulte said his clients had not sought to challenge the state's ban on same-sex marriage. They were asking only to split up without having to return to Cambridge, as a heterosexual couple would have been able to do.